Meta's data collection: Saxony-Anhalt also changes sides

Contents

Meta Platforms is increasingly on the defensive in the fight for its business model in Germany. On Thursday, the Higher Regional Court of Naumburg (OLG Naumburg) became the third Higher Regional Court to rule that Meta's data collection on third-party websites and apps is unlawful. In two proceedings, the OLG is awarding damages in the four-figure range for this. This brings the score to 10:0 in favor of the data company at the OLGs.

In December, the 14th Senate of the Munich Higher Regional Court ruled against Meta in four proceedings, and at the beginning of the week, four decisions by the 4th Senate of the OLG Dresden against Meta Platforms were added. And now the 9th Senate of Naumburg (File Nos. 9 U 124/24 and 9 U 44/25). This OLG is responsible for the entire state of Saxony-Anhalt; its regional courts (LG) have so far all ruled in favor of Meta Platforms and against the internet users represented by the Berlin law firm Baumeister and colleagues. The regional courts will certainly turn their jurisprudence around 180 degrees now.

Meta Business Tools

In total, around 10,000 lawsuits are pending against Meta in Germany. So far, only the six cases decided this week in Dresden and Naumburg are legally binding.

The reason for the wave of lawsuits are the so-called Meta Business Tools. They consist of invisible pixels and interfaces (API) that webmasters and app operators can integrate free of charge. They then receive information about how users use the services; Meta, in return, receives extensive personal data about the users, including contact details and, in some cases, sensitive information, such as sexual preferences, health, or worldview. Without the consent of the data subjects, Meta creates profiles from this data for purposes that do not align with the purpose that the users pursued when accessing the website or app.

“Meta could … track every click, every search, and every purchase on thousands of websites and apps using its Business Tools until November 3, 2023,” writes the OLG Naumburg in a press release. “To do this, the data subjects did not have to be logged into Facebook or Instagram. Meta used this data unnoticed and without the users' consent.” Since November 2023, data transmission has been “differentiated depending on user settings,” but there is “still extensive data usage by” Meta.

Damages

According to the OLG Naumburg, this data processing is unlawful, violates the principle of data minimization, and is not covered by consent or other grounds for justification. Therefore, Meta must cease collecting data about the plaintiffs via its business tools on third-party sites. In doing so, the OLG joins its colleagues in Munich and Dresden.

While the damages in Munich were only in the three-figure range, in Dresden and Naumburg they are low four-figure amounts per suing Meta user: 1,500 euros in Dresden and 1,200 and 1,250 euros, respectively, in the two Naumburg cases. The judgments announced on Thursday have not yet been issued in writing, so the reason for the small difference is still unknown.

No Appeal to the Federal Court of Justice

Just like the OLG Dresden, the OLG Naumburg also excludes appeals to the Federal Court of Justice (BGH). After all, there are no two opinions among German higher regional courts, even if the Munich and Dresden decisions against Meta's data collection do not exactly match. Due to the lack of appeals, the two cases from Saxony-Anhalt are legally binding.

Meta has so far only been able to submit the four Munich cases to the BGH through appeals. Because the Munich judges ruled first, they could not exclude the appeal by referring to uniform case law.

Facebook Subscription Makes No Big Difference

In November 2023, Meta introduced paid subscriptions in Europe for 13 euros. While they help against advertising directly on Facebook and Instagram, they do not help against data collection or targeted advertising on other apps and websites. And anyone who doesn't have a Meta account can't adjust anything anyway.

In the Dresden proceedings, Meta stated that it always compares the data collected using Business Tools with its user directory. If no match is found there, the data is processed for fewer purposes than if it concerns Meta users. However, even this comparison is data processing within the meaning of Art. 4 (2) of the General Data Protection Regulation (GDPR) and therefore requires a legal basis, the OLG Dresden emphasized. So far, the editorial team is not aware of any judgments following lawsuits by non-Meta users against this practice.

In Austria, the Supreme Court (OGH) recognized last year that both Meta's data collection and the personalization of advertising based on it are impermissible. This procedure took eleven years. However, the obligation to cease and desist in Austria also only applies to the plaintiff, Facebook user and founder of the data protection organization Noyb, Max Schrems. Meanwhile, the Austrian Consumer Protection Association (VSV) has filed a lawsuit for injunctive relief against Meta Platforms at the Commercial Court of Vienna; if successful, the judgment would restrict Meta regarding all Austrian internet users.

A class action lawsuit is also being prepared in Germany, for which interested parties will have to register. For Meta, it's about a lot of money; after all, it combines personal data from tens of thousands of websites and apps. These user profiles are essential for selling personalized advertising space. The US company thus generates around one billion US dollars weekly in Europe.

(ds)